Riker v. Boughton

ORDER DIRECTING RESPONDENT TO RESPOND TO THE PETITION
(DKT. NO. 1) AND DEFERRING RULING ON PETITIONER’S
MOTION TO COMPEL DISCOVERY (DKT. NO. 10)

HON.
PAMELA PEPPER United States District Judge

Petitioner
Sean Anthony Riker, a prisoner incarcerated at the Wisconsin
Secure Program Facility, filed a petition for a writ of
habeas corpus under 28 U.S.C. §2254. Dkt. No.
1. The court screened that petition under Rule 4 of the Rules
Governing §2254 Proceedings, and determined that the
petition appeared to contained both exhausted and unexhausted
claims. Dkt. No. 8. This court cannot review a mixed
habeas petition. Rhines v. Weber, 544 U.S.
269, 274-75 (2005). Consistent with the guidance that the
Supreme Court provided in Rhines, the court gave the
petitioner the option to dismiss his petition and attempt to
exhaust his unexhausted claims, or to withdraw his
unexhausted claims and proceed with his insufficiency of the
evidence and excessive sentence claims, which appear to be
exhausted. The petitioner has chosen to withdraw his
unexhausted claims and proceed only on his exhausted claims.
Dkt. No. 9.

At this
preliminary stage, it appears to the court that the
petitioner has presented his insufficiency of the evidence
and excessive sentence claims to each level of the Wisconsin
state courts, and ultimately was denied relief. The court
cannot determine from the petition and its attachments that
either of these claims is procedurally defaulted. The court
notes, however, that at this stage in the case, the
respondent has not had an opportunity to weigh in on the
exhaustion and procedural default questions; nothing in this
order prevents the respondent from arguing that the
petitioner has not exhausted his claims or has procedurally
defaulted one or both of his claims, or from filing pleadings
based on either such argument.

The
petitioner also has renewed his demands for discovery.
See Dkt. No. 9 at 2-3; Dkt. No. 10. He claims that
staff members of the institution where he currently is
incarcerated confiscated a printed form and a case document
that the petitioner had intended to present as evidence with
regard to his habeas claims. See id. The
petitioner has not described the court document, explained
how it relates to his habeas claims, or explained
why the staff members confiscated the request form or the
court document. The petitioner asked the court to order the
institution “to release the document to the petitioner,
and furthermore to cease violating his rights.”
Id. He also demanded that the respondent provide him
with “a complete discovery . . . from the beginning of
this case.” Dkt. No. 9 at 3.

The
petitioner did not cite any authority-any laws or rules or
case law- in support of his motion. The court can’t
tell for sure, because the only description of the document
he gives is “Riker v. Riker case document,
” but it appears that he is asking for a court document
relating to a civil case in which he was a party. If that is
true, it is difficult for the court to see how that document
would be relevant to his insufficiency of the evidence and
excessive sentence claims. For that reason, the court will
construe both the petitioner’s discovery demand
(contained in his response to the court’s request that
he inform the court how he wanted to proceed, Dkt. No. 9 at
2-3) and motion (Dkt. No. 10) as motions under Rule 7 of the
Rules Governing §2254 Proceedings, which allows the
court to direct the parties to submit additional materials
related to the petition.

While
the court has discretion under Rule 7, the court is not going
to require the respondent to produce documents at this time.
As of the date of this order, the respondent has not yet been
served with the petition and has not had an opportunity to
file his answer or the materials described in Rule 5 of the
Rules Governing §2254 Proceedings. He hasn’t seen
the petitioner’s motion discovery demand or motion, and
for that reason, hasn’t had a chance to respond. The
discovery demand and motion are premature, and the court will
wait to rule on them until after the respondent has been
served and had the opportunity to respond.

III.
CONCLUSION

The
court ORDERS that the petitioner may proceed on the
insufficiency of the evidence and excessive claims in his
habeas petition (grounds One and Three of the
petition). The court ORDERS that the petitioner’s
remaining unexhausted claims (grounds Two and Four of the
petition) are DISMISSED.

The
court ORDERS that within sixty days of the date of this
order, the respondent shall ANSWER OR OTHERWISE RESPOND to
the petition, complying with Rule 5 of the Rules Governing
§2254 Cases, and showing cause, if any, why the writ
should not issue.

The
court ORDERS that within sixty days of the date of this
order, the respondent shall RESPOND to the petitioner’s
discovery motion. (Dkt. No. 9 at 2-3; Dkt. No. 10)

The
court ORDERS that the parties must comply with the following
schedule for filing briefs on the merits of the
petitioner’s claims:

(1) the
petitioner has forty-five (45) days after the respondent
files his answer to file his brief in support of his
petition;

(2) the
respondent has forty-five (45) days after the petitioner
files his initial brief to file the respondent’s brief
in opposition; and

(3) the
petitioner has thirty (30) days after the respondent files
his opposition brief to file a reply brief, if the ...

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